Legislated Rights: Comment by JD Heydon

The central thesis of this profound and thoughtful book is the crucial role of the legislature in securing and promoting human rights. The arguments command strong assent. There are many, many parts of it which are fundamental and devastating.

There is, however, an anterior question not explicitly asked, though it is implicitly answered. The question is: should the law (whether the law expounded in precise and detailed legislation, or the general law developed by judges independently of legislation, or the law as developed by judges out of the necessarily vague and loose phrases to be found in constitutional, or treaty-based or other bills of rights) be used to secure and develop human rights at all? Many assertions of human rights are moral assertions. Many rest on values developed over time through the growth of custom. It is hard to see how something can be called a “human right” unless it has considerable silent application and substantial support among much of the community. Of course the mere fact that a point of view has majority support does not necessarily render it virtuous or permit its application to be seen as advancing human rights. The persecution of Jews all over Eastern Europe, the persecution of Catholics in Germany, the persecution of Christians and Muslims in China – even in modern times all of these things have been popular in their particular communities. But, putting aside this problem and concentrating on reasonably tolerant and healthy societies, it may be said that at least a large number of the “human rights” habitually recognised in bills of rights or legislation or in courts rest on moral ideals widely shared.

If so, why is legislation needed? Why is it not possible for citizens to recognise each other’s freedom of speech, to deal with each other without discrimination on racial or religious or sexual grounds, as distinct from reasons of substance (like refusing to serve alcohol to young children)? If each behaved decently to all others, what useful role would be left for the law?

One difficulty lies in the collision of moral ideals. Free speech is a fine thing. So is courtesy. To speak freely can hurt. Yet it is courteous to avoid hurting others. One person’s exercise of free speech can be felt as an intolerable insult by another.

Another difficulty lies in the following considerations. Whatever the general ideals of the community, there will be some who do not accept them. There will be some who pay lip service to them, but not actual service. And the inherent vagueness of moral ideals makes it hard to take them as the exclusive basis for organised social life.

Even if the goal of legally enforcing bills of rights is to enhance the morality and civilisation of a particular society, society can be moral and civilised without law. And if social morality depends totally on law, the society cannot easily be called moral or civilised. But the fact is that the non-legal forces working to engender morality in civilisation tend to be partly or wholly ineffective unless there is legal backing as well. The law is a teacher of what is right conduct. And it is a force of punishment when its teachings are ignored.

Even if, with this book, one accepts that, overlooked though it may be, legislation is a powerful and effective means of human rights protection, legislation does not operate directly on human affairs. It is nothing but aspirational if it is not enforced. When the state or an affected person seeks to enforce legislation, those who will suffer from its enforcement may resist. Eventually controversial questions will come to a court about the meaning and application of the enactment and whether, if there is an element of discretion in its enforcement, that discretion ought to be exercised in favour of enforcement. The controversy can bristle with questions. They can be questions of fact. They can be questions of law, including constitutional law. Their character can be mixed. But at the end of the day it will be judges who have to decide those questions. Hence it cannot be said that there is a mutually exclusive choice between the judicial enforcement of human rights as stated in human rights, and the judicial enforcement of human rights through other means – by judicial development of the common law (for example, common law development of the criminal standard of proof), or the judicial construction of legislation. At least in the Anglophonic world, it will be judges who interpret legislation, and to that extent they will help to define and funnel its impact. Whatever the vices of judges, they will have to be endured whether they are seeking to protect human rights as embodied in bills of rights, or humans rights as embodied in statutes.

Of course, Anglophonic judges, to speak of no other, have great achievements to their credit over the centuries. But at least in modern times some have failed to remember that forty earlier generations are looking down on them. They have exhibited a marked vice. That vice is to spin out of very general phrases – whether in constitutions, non-constitutional bills of rights, ordinary statutes or preceding common law decisions – meanings which are ahistorical, inconvenient, untrue to the provenance of the law, and reflective only of individual judicial will. Law must often be stated in general phrases, and at least non-statutory law must allow for some free play in its joints so as to permit its sensible development. The judicial challenge is to steer between, on the one hand, blind, automaton-like fidelity to the text and, on the other hand, adventurism which may signal virtue but may also generate chaos and unnecessary discontent amongst the governed. As the book points out, human rights litigation has become a second battlefield additional to the legislature. Proposals which fail in the legislative process and “fail for reasons other than the majority’s contempt or disregard for any person or group” are agitated again in the court (p 181). There is a further difficulty in relation to the judicial enforcement of human rights by judges when conducting judicial review of legislation and other conduct against bill of rights standards. As the book explains (pp 196-197), there is an imbalance in the type of litigation. The alleged infringements are actual and concrete so far as those complaining are concerned. But there is a lack of concreteness in relation to those protected by the legislation under attack. “In defending legislation, the government will often be disadvantaged by the absence of a singular defendant who embodies and vividly illustrates the concerns animating legislative intervention.”

The great virtue of the legislative technique is its inherent capacity to take a general idea – whether it is a moral norm, a constitutional requirement, or a broad common law principle – and make it workable in its application to some concrete social problem. It is precision and detail in legislation which tends to avoid some of the weaknesses inherent in judicial enforcement – unpredictability, ignorance, incompleteness and ineffectiveness. The precision and detail of legislation can also make more clear what the competing considerations are which underly the scheme adopted.

The book abounds in useful examples of the use of legislation to solve particular problems which, under another guise, are human rights problems. They are obvious after one has read the book, but were not so obvious before.

One is the control of police interrogation – a crucial matter. That is because the awesome power of the state in antagonism to the interests of an individual human being is at its most marked late at night in a police station or a police vehicle. The common law developed some general principles about powers of arrest and the limits of interrogation, search, seizure and surveillance. In the last generation the problem has come to receive very close and often very precise regulation by statutes or delegated legislation. This is important, for the police officers who have to conduct the investigation of crime and the interrogation of suspects are often of low rank, operating in substantial isolation from superiors, without the possibility of attaining assistance, in conditions of urgency, and not necessarily possessing the legal sophistication which intelligent and highly critical minds will bring to bear on their conduct later during leisurely and elaborately prepared legal proceedings. That is true, incidentally, of many other state officials and citizens who are not officials who are called on to conduct potentially harmful activities.

Another example concerns legislation aiming to regulate the sources of danger to human health – whether these lie in ill-constructed buildings, dangerously manufactured food and medicines, unsafe goods (cars, ovens, refrigerators, vacuum cleaners, lawn mowers, power tools) and dangerous places like swimming pools. From a desire to control these risks have arisen masses of detailed legislative regulation.

Other examples include many parts of the criminal law seeking to protect citizens from malicious injury to their persons or property, or from the numerous mischiefs that flow from uncontrolled public disorder; legislation regulating schools, training institutions and universities; and the role of commercial law in attempting to maintain standards of honesty, skill, diligence and reliability in trade.

The book takes a perhaps too optimistic view of legislation as it is. It can operate in a manner superior to judicially enforced bills of rights. But is it possible to say that it always does so? The book reminds the reader not only of the varieties of legislation, but also of the different factors that can affect its form. In Westminster systems, there is the domination of the legislative process by cabinets and political parties (themselves composed of at times querulous and competing factions), with some influence at times from cross benchers and independents. The members of the legislature will reflect different geographic or social interests, either for deliberately selected structural reasons, or as a matter of practical reality. There is the role of pressure groups, particularly trade unions, trade associations and the media. There is the influence of standing law reform committees or ad hoc inquiries. There are the findings and recommendations of legislative committees. Then there are more secret but potent forces. Some come from the activity of those comprising the staffs of Ministers and members. Some are within the civil service – for among its members there may be diverse groups, each biding its time until a Minister comes to power who is sympathetic to, or can be captured by, some particular new policy. Most secret of all, and far from the least powerful, are those who actually draft legislation. At least in jurisdiction where their skills, difficult to develop as they are, continue to adhere to the standards of former times, their conduct ensures some coherence in legislation. Without them legislation would take on a much more chaotic and obscure form than it does, at least in the United Kingdom and those jurisdictions who are immediately derived from the United Kingdom. Much drafting involves the conversion of imprecise instructions into a style which conforms to that employed in many other legislative instruments. That process can lead to a gap developing between executive intention and legislative result.

The ultimate sticking point for those who oppose the arguments of this fine book is likely to be the view that if human rights depended on readily repealable legislation, they would be fragile. But even the near non-amendability of so powerful thing as a constitutional bill of rights is an illusory protection. The societies which generate social conditions likely to bring to power governments extremely hostile to human rights are not societies in which those who trample on human rights are likely to be deterred from what they do or brought to book for what they have done.

Hon. John Dyson Heydon AC QC was a Justice of the High Court of Australia from 2003 to 2013.